Has the Scottish Criminal Justice
process met the expectations of delivering true justice to true victims and thosealleging abuse in historical physical and sexual abuse cases in Scotland?

While FBGA has every sympathy and empathises with all individuals who are alleging that they were physically and sexually abused in care in Scotland in the past, there are fundamental issues that have to be addressed regarding historical abuse allegations now that the The Scottish Human Rights Commission is involved in the process. FBGA will be addressing some of the historical abuse issues in the coming months, so as to promote a wider understanding, while having an equitable, transparent, balanced debate on the abuse issues re: Scotland and how these have, or may have, impacted on alleged victims and the true victims.

What about alleged abuse cases where The Procurator Fiscal has brought no charges and has not proceeded to bring a case to court due to any number of reasons? Are there other Legal avenues available to the alleged victims? What about The Rights of the individuals and parties involved? What about the accused in such cases, are they exposed to potentially false claims and allegations made in public and the media without any due process or recourse? How will you ensure rules of natural, Justice and Rights for the alleged victim and the accused in these historical abuse cases concerning Scotland in such a forum as is being envisaged?

In this 1st paper, we have chosen to highlight some of the complexities and anomalies of the Criminal Justice System in Scotland in relation to two historical sexual abuse cases which were previously highlighted in the Scottish media. One case proceeded to Court the other did not.

There is sufficient credible, fact and evidence to charge the alleged abuser and the Procurator Fiscal proceeds to bring the case to Court. Prior to the Trial the case is adjourned, due to issues raised by the defence team concerning the indictment, that it was flawed. This allowed the alleged abuser to escape trial on a legal technicality because a formal legal phrase was not included in his indictment. Six missing words let abuse accused go free - Case Collapses by John Robertson and Jim McBeth, the Scotsman, 14/07/2005. The flawed indictment issue is upheld by the Appeal Court.

The Crown-Procurator Fiscal announces that they will re-indict the case and a retrial will take place. This causes further delay while this process takes place. The case eventually comes to Court many months later adding further anxiety and distress for the alleged victims. The alleged abuser continues to deny the allegations in the media. Given the facts and evidence presented to the Jury and Court, the accused was found guilty of abusing 1 individual only by the jury. Quarrier's beast found guilty of child abuse by Marion Scott, the Sunday Mail, 08/06/2008.

The jury found the alleged abuser not guilty of four other charges and not proven on a fifth. This is the 8th ex-employee of Quarriers to be convicted. A further twist is yet to come adding to the distress of the victim. The Procurator Fiscal has to accept the conviction is flawed as the jury has disregarded a sheriff's instruction they could only convict him of two or more charges.

Under a legal precedent in Scottish Law called the Moorov doctrine, at least two separate but similar crimes must be proved in Scotland, if the only witness is the accuser.Quarriers Accused Let Off After Jury Gaffe by Marion Scott, the Sunday Mail, 08/06/2008.

All the alleged victims who have anonymity, in this particular case continue to maintain in public that they were sexually abused. Yet the public, survivors and others may not fully understand all the facts of this particular case due to insufficent knowledge of Scots' Law in relation to the jury's original decision being flawed and the subsequent limited media coverage of this particular case.

Did the Procurator Fiscal take the decision not to proceed due to the fact that there was insufficient credible fact and evidence available? Was there also no other complainants or witnesses (corroborating fact or evidence) either to support the allegations of serious sexual abuse, by the Crown's and claimant's admission in the media? I was hooded, held down and raped by Deveney, Scotland on Sunday, 17/11/2002

According to the alleged victim's interview in the Sunday Mail in 2005 one of the alleged abuser may be deceased. If so they cannot respond or defend themselves against the serious sexual abuse allegations. There could have been any number of factors including confidential reason's, why this case did not proceed to Court and no one was charged with any abuse offences. Was there decline in the quality of the facts and evidence due to delay? Witnesses may be deceased or too old or infirm to testify.

The elderly Nun who has also been accused in this case, has publicly denied all the allegations and abuse claims made by the alleged victim in the media (Scotland on Sunday 17/11/2002). We know that paedophiles and others will deny such abuse.

There was a further twist to this case, according to media reports in (the Sunday Herald 24/09/2000), Helen Holland sought the advice of her MSP, Jackie Baillie, who wrote to the Lord Advocate, Colin Boyd and Justice Minister, Jim Wallace. Despite the fact the case was apparently reopened and police had launched a new investigation into abuse at Nazareth House, Kilmarnock. No one has ever been charged or prosecuted in Court with sexually or physically abusing the alleged victim in this case.

The alleged victim in this case continues to maintain in public and the media, that they were sexually abused. Are there other legal avenues available to this alleged victim, such as bringing a private prosecution, as the Catholic Church claims? The alleged victim also purports and claims in public, on forums and at meetings, to represent the historical abuse survivor issues and views in Scotland.

The Public, Survivors and others may not fully understand the full facts of this case, due to insufficient knowledge of the Scottish criminal and civil Justice system, no public court record and the ambiguity of the media coverage in this particular case.

FBGA are raising a number of issues in relation to historical sexual and physical abuse cases to promote a wider discussion for the Scottish Human Rights Commission consultation regarding "Acknowledgement and Accountability".

1. How can you uphold the rights of the accused and the alleged victim while ensuring the rules of natural justice prevail in any forum, if the claims and allegations of abuse are being denied in any given circumstances. Given the seriousness of sexual abuse allegations, claims made and the fact that there may only be the testimony of a single alleged victim to go on? Should such serious historical sexual abuse allegations and claims made or any allegations whatsoever, be taken simply at face value, as wholly honest and truthful without any proper investigations, a
due judicial process or independent oversight?

2. If the Procurator Fiscal and the Police have investigated all the facts and evidence in a particular case, yet they have insufficient credible fact and evidence in law and no corroborating witnesses to proceed, whereby they cannot prove conclusively, that in fact sexual abuse occurred. There may also be sensitive and confidential, contributing factors in a particular case, including in relation
to the alleged victim, why the Procurator Fiscal has decided not to proceed to bring charges against any individual accused.

3. If there is no factual credible, reliable, facts or evidence and if there are no corroborating facts and evidence to support such serious historical sexual abuse claims and allegations or other abuse allegations. Should one just assume and have complete trust and confidence IF abuse actually occurred under such circumstances, if there is only, the alleged victim's testimony to go on and no other complainants or witnesses to support such allegations and claims? If no due process has taken place.

4. Given the seriousness of the alleged crimes, should the definition and criteria used in historical sexual abuse cases within a forum be a lesser standard than a court of law? Whereby the Courts establish the facts and evidence beyond reasonable doubt?

5. Should such serious sexual abuse allegations and claims, and any other allegations, be decided on
the balance of probability in an alternative forum process? Would this be equitable for the alleged victim and those accused in such serious abuse cases?

6. Should there be conclusive fact and evidence including corroborating fact and evidence to
determine guilt or innocence in historical sexual abuse cases and any other such cases? What about allegations where the alleged abusers are deceased?

7. How do you uphold and balance the rights and the rules of natural justice, true justice for the alleged victim and the accused in these unique circumstances? Given that not all individuals alleging historical sexual abuse may be telling the truth and that the alleged abuser may not or will not admit to the crime? What about false, collusive, malicious allegations and claims?

8. Does the legal precedent of the Moorov Doctrine, whereby at least two separate but similar crimes must be proved in Scotland, if the only witness is the accuser, provide extra safeguards in serious sexual abuse cases and other alleged crimes? Does the legal precedent of the Moorov Doctrine, enshrined in Scots law, offer safeguards, fairness and protection to those accused in historical sexual and physical
abuse cases without being prejudicial? Does the "Moorov Doctrine" prevent miscarriages of justice, false allegations and false claims in historical abuse cases and other cases?

9. Should there be a systemic independent, critical review and examination of all historical abuse
cases in a Forum, which have not been conclusively proven in any due process or court of law to-date? Especially where very serious allegations are being made and which are being disputed in Scotland. Would this be equitable to the accused and the alleged victim?

10. Is the criminal court the appropriate and only proper forum to determine innocence or guilt in
historical sexual and physical abuse cases? Whereby establishing the full true facts and verifying the accuracy of all the claims and allegations.

All such historical abuse claims and allegations made, in our view should be fully investigated, scrutinised and
validated in Scotland, to establish the full true facts, while upholding the integrity of the process. The forum
process should be just and equitable, ensuring indivisible, true Justice for all, including those abused and individuals alleging abuse and those accused. The processes must ensure that the universal rights of all individuals regardless are protected and upheld in any forum processes set up.